NAHC Overtime Lawsuit Update: Parties Submit Competing Motions to Court of Appeals
September 3, 2015 08:51 AM
As indicated in NAHC Report on August 27, the National Association for Home Care & Hospice’s (NAHC) lawsuit challenging the validity of US Department of Labor (DOL) rules regarding minimum wage and overtime compensation for personal care and live-in aides is headed to the U.S. Supreme Court. As a first step in that effort, NAHC and the other association plaintiffs have filed a Motion for Stay with the U.S. Court of Appeals that had earlier reversed the favorable lower court ruling that had vacated the challenged rules. At the same time, the US Department of Justice, representing DOL, filed a Motion for Expedited Issuance of the Mandate. Presently, the Court of Appeals decision is scheduled to take effect on October 13 with an order that the lower court issue a decision in favor of DOL.
NAHC and its co-plaintiffs see the Motion for Stay as a key step in the appeal to the Supreme Court. If a stay is not granted, the rules will go into effect on or about October 13 (depending on the speed of the lower court’s action) even if there is an appeal pending before the Supreme Court. In the event that the Court of Appeals denies the stay request, NAHC intends to seek a stay through the Supreme Court itself. Such a request would be handled by Chief Justice Roberts as he is responsible for such matters involving the District of Columbia appellate circuit.
In its Motion, NAHC and the co-plaintiffs argue that a stay is necessary to protect the interests of consumers, workers, home care businesses, and state Medicaid programs while the Supreme Court considers whether to take on the appeal. If the Court of Appeals ruling goes into effect, Plaintiffs argue that consumers will face access to care problems, loss of continuity of care with the workforce shifting to part-time employees, and a risk that quality of care deteriorates when multiple caregivers replace a single one with a patient/client. As NAHC has held for many years, the rule change also creates a risk of irreparable harm to workers who are likely to lose income when they are relegated to part-time work. Further, it is very clear that state Medicaid programs have not and will not increase payment rates sufficient to cover the costs of overtime. All of these impacts ultimately causes harm to home care businesses that have operated under the overtime exemption for 40 years.
The DOL competing Motion seeks to have the Court of Appeals ruling take effect earlier than the October 13 date. The DOL motion does not specifically suggest an earlier date. However, DOL indicates that it will not bring enforcement actions against any employer until 30 days after the court’s mandate issues. DOL instituted a similar “non-enforcement” policy as the challenged rules were about to take effect on January 1, 2015. Such a policy has very limited value to employers as it would not stop employees and their attorneys from enforcing the rules in a private action.
The Court of Appeals has ordered that each party submit a response to the competing motions by September 14, 2015. It is expected that the Court will issue its rulings on the motions quickly thereafter. In the meantime, NAHC and its co-plaintiffs are preparing to file a Petition for Writ of Certiorari requesting that the US Supreme Court hear the appeal. Supreme Court review is discretionary. NAHC will argue that the importance of the issue to thousands of home care businesses, millions of patients/clients, and hundreds of thousands of workers warrants the Court’s review. NAHC had earlier litigated related overtime issues successfully at the Supreme Court in 2007.